Coleman, Robert Lee v. Texas, the State Of ( 1993 )

(Umiri of Appeals
JTtfttf Btsirtrt of ©exas at Dallas
BE IT REMEMBERED:
ROBERT LEE COLEMAN, Appellant Appeal from the 283rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-91-01726-CR V. F91-66590-T).
Opinion delivered by Justice Morris,
STATE OF TEXAS, Appellee Justices Baker and Barber participating.
Based on the Court's opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings.
I, MELANIE KEETON, CLERK of the Court of Appeals for the Fifth District of
Texas, at the City of Dallas, hereby certify that the foregoing is a true copy of the opinion,
judgment and all orders entered by this Court in the above cause.
IN WITNESS WHEREOF, I hereunto set my hand and affix the seal of said Court
at Dallas this 12th day of March, 1993.
MELANIE KEETON, CLERK
By yF/]/)A/»785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Bridge v. State, 726 S.W.2d 558, 571
(Tex. Crim. App. 1986). To establish ineffective assistance of counsel, the defendant must
show a deficiency in his counsel's performance that prejudiced his defense. See Ex Parte
Drinkert, 821 S.W.2d 953, 954 (Tex. Crim. App. 1991); Hernandez v. State, 726 S.W.2d 53,
57 (Tex. Crim. App. 1986) (adopting test set forth in Strickland v. Washington, 466 U.S. 668,
687 (1984)). In applying this two-prong test, we first determine whether defense counsel's
acts or omissions were outside the range of professionally competent assistance. If so, we
must then determine whether, but for counsel's errors, there is a reasonable probability a
different outcome in the proceeding would have occurred. See Ex Parte Drinkert, 821
S.W.2d at 955; Washington v. State, 111 S.W.2d 537, 545 (Tex. Crim. App.), cert, denied,
492 U.S. 912 (1989). Areasonable probability of a different outcome means a probability
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sufficient to undermine confidence in the outcome. See Washington, 111 S.W.2d at 545. To
determine whether a defendant received adequate assistance, this Court looks at the totality
of the representation rather than isolated acts or omissions of trial counsel. We apply the
test as of the time of trial and not through hindsight. See Wilkerson v. State, 726 S.W.2d
542, 548 (Tex. Crim. App. 1986), cert, denied, 480 U.S. 940 (1987); Thomas v. State, 812
S.W.2d 346, 349 (Tex. App.-Dallas 1991, pet. refd).
Because we assume without deciding that appellant was detained when initially
stopped by Officers Kirksey and Smith, we need only address whether appellant's detention
*. was justified. If the detention was justified, the evidence derived from it was admissible, and
the failure of appellant's attorney to object would not have denied appellant effective
assistance of counsel. See Kizzee v. State, 788 S.W.2d 413, 415 (Tex. App.-Houston [1st
Dist.] 1990, pet. refd); Cevallos v. State, 755 S.W.2d 901, 904 (Tex. App.-San Antonio
1988, pet. ref d). Conversely, if appellant's detention was not justified, the evidence
obtained from the detention was inadmissible, and his attorney's failure to object could
constitute ineffective assistance of counsel when viewed under the totality of the
representation standard. See Ex Parte Welborn, 785 S.W.2d at 396; Weathersby v. State, 627
S.W.2d 729, 730 (Tex. Crim. App. 1982); Doles v. State, 786 S.W.2d 741, 746 (Tex.
App.-Tyler 1989, no pet.); Perkins v. State, 111 S.W.2d 195, 198 (Tex. App.-Houston [1st
Dist.] 1989), affd, 812 S.W.2d 326 (Tex. Crim. App. 1991).
The Texas Court of Criminal Appeals frequently has held circumstances short of
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probable cause for arrest may justify a temporary detention for the purposes of investigation,
since an investigation is considered to be a lesser intrusion upon the personal security of the
individual. See Dickey v. State, 716 S.W.2d 499, 503 n.4 (Tex. Crim. App. 1986). Thus, a
police officer may briefly stop a suspicious individual to determine his identity orto maintain
the status quo momentarily while obtaining more information. See Gearing v. State, 685
S.W.2d 326, 327-28 (Tex. Crim. App. 1985). To justify such an investigatory detention, the
officer must rely upon specific articulable facts. These facts, when premised upon the
officer's experience and personal knowledge and coupled with the logical inferences from
the facts, must warrant the intrusion on the person detained. However, the facts must
amount to more than a mere hunch or suspicion. See Garza v. State, 111 S.W.2d 549, 558
(Tex. Crim. App. 1989). Moreover, the articulable facts relied upon by the officer must
create (1) a reasonable suspicion some activity out of the ordinary is occurring or has
occurred, (2) some suggestion to connect the person detained with the unusual activity, and
(3) some indication the unusual activity is related to crime. See id.
The testimony at trial was clear. Officer Kirksey testified he relied upon the following
facts to justify appellant's detention: (1) he knew appellant for two years and saw him
almost every day; (2) he knew appellant did not work at a regular job; and (3) he thought
it unusual for appellant to be carrying a new toolbox because appellant was unemployed.
In light of Officer Kirksey's personal knowledge that appellant was unemployed, the
sight of appellant carrying a new toolbox, an activity to which he was obviously connected,
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might reasonably appear to be "activity out of the ordinary." However, before Officer
Kirksey detained appellant, he observed nothing to indicate appellant had gained possession
of the toolbox illegally. See Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992);
Garza, 111 S.W.2d at 558. Similarly, prior to stopping appellant, Officer Kirksey had
received no reports ofa burglary or theft ofany kind involving a red toolbox. Only after the
officer detained appellant, questioned him, and dispatched a general inquiry, did hediscover
a red Craftsman toolbox had been stolen from a garage approximately two blocks away.
The fact that Officer Kirksey thought it "unusual" for appellant to be carrying a toolbox
because he was unemployed amounts to no more than a mere hunch or suspicion that
appellant had obtained the toolbox illegally. See Garza, 111 S.W.2d at 558. At the time
Officer Kirksey stopped appellant, appellant's activity was as consistent with legal activity
as it was with illegal activity. See Cook v. State, 832 S.W.2d 62, 66 (Tex. App.-Dallas 1992,
no pet.).
We conclude Officer Kirksey's "articulable facts" did not create any indication that
appellant's possession of the toolbox was related to crime. As a result, Officer Kirksey
lacked reasonable suspicion to detain appellant. Therefore, the evidence regarding
appellant's possession of the toolbox and his inconsistent explanations concerning how he
obtained it were inadmissible. See Cook, 832 S.W.2d at 66; Tex. Code Crim. Proc. Ann.
art. 38.23 (Vernon Supp. 1992).
Our conclusion that the evidencewas inadmissible does not, however, end our inquiry
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into whether defense counsel's failure to object to the admission of the evidence was outside
the range of professionally competent assistance. We must also ascertain the effect, if any,
this evidence had on appellant's trial.
Appellant contends his possession of the toolbox and his inconsistent statements
regarding how he obtained it were the only evidence linking him to the burglary of the
complainant's garage. No fingerprints were taken from the complainant's garage. There
was no eyewitness testimony placing appellant at the scene of the burglary. Appellant
asserts ifthe admitted evidence had been excluded by way ofan objection from his attorney,
there would be no evidence upon which the trial court could have based a conviction. Thus,
appellant claims, but for the failure of defense counsel to object to this evidence, he would
have been acquitted.
In adjudicating appellant's guilt, the record reflects the trial court based its
judgment upon his possession of the property and his inconsistent explanations regarding
how he obtained the property. We conclude this was the only evidence connecting appellant
to the burglary, and without it there would be nothing upon which to base a conviction.
As noted previously, in determining whether a defendant was denied effective
assistance of counsel, we must look at the totality of the defendant's representation rather
than isolated acts or omissions of trial counsel. See Wilkerson, 726 S.W.2d at 548; Thomas,
812 S.W.2d at 349. However, under certain circumstances a single error, notwithstanding
competent performance on other matters, may be so prejudicial as to render counsel's
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representation ineffective. For example, in Ex Parte Zepeda, 819 S.W.2d 874 (Tex. Crim.
App. 1991), the defendant alleged he was denied effective assistance of counsel because his
attorney failed to request a juryinstruction on accomplice witness testimony. See id. at 876.
The Texas Court of Criminal Appeals noted that aside from the accomplice witness
testimony, none of the other evidence tended to connect the defendant to the commission
of the offense. See id. The court found that had an instruction been given, the jurywould
have been informed it could not convict the defendant without corroborating evidence
tending to connect the defendant to the commission of the offense. See id. The court
concluded that given the state of the evidence, defense counsel's failure to request an
instruction on accomplice witness testimony was an error rendering his performance
deficient. See id. at 877.
Similarly, under the facts of this case we conclude defense counsel's failure to object
to the inadmissible evidence constituted deficient performance and was an omission so
prejudicial to appellant's case as to be outside the range of professionally competent
assistance. See Ex Parte Welbom, 785 S.W.2d at 396; Weathersby, 627 S.W.2d at 730; Doles,
786 S.W.2d at 746; Perkins, 111 S.W.2d at 198. We also conclude, but for defense counsel's
error in failing to object to the inadmissible evidence, there is a reasonable probability the
outcome of the case would have been different. See Ex Parte Drinkert, 821 S.W.2d at 955;
Washington, 111 S.W.2d at 545.
Accordingly, we hold appellant was denied effective assistance of counsel. We sustain
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his sole point of error, reverse the judgment of the trial court, and remand the case for
further proceedings.
Do not Publish
Tex. R. App. P. 90
911726F.U05
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(£aurt of Appeals
mftt| Ststrtrt of Qkxas at Eailas
JUDGMENT
ROBERT LEE COLEMAN, Appellant Appeal from the 283rd Judicial District
Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-91-01726-CR V. F91-66590-T).
Opinion delivered by Justice Morris,
STATE OF TEXAS, Appellee Justices Baker and Barber participating.
Based on the Court's opinion of this date, the judgment of the trial court is
REVERSED and the cause REMANDED for further proceedings.
Judgment entered January 12, 1993.